4.0/Technical protection measures

This page presented an issue for consideration in the CC license suite 4.0 versioning process. The discussions have now concluded with the publication of the 4.0 licenses, and the information on this page is now kept as an archive of previous discussions. The primary forum for issues relating to the 4.0 versioning process was the CC license discuss email list. You may subscribe to contribute to any continuing post-launch discussions, such as those surrounding compatibility and license translation. The wiki has been populated with links to relevant email threads from the mailing list where applicable, and other topics for discussion were raised in the 4.0/Sandbox. See the 4.0 page for more about the process.

Contents

Treatment in drafts

(expand to read Draft 1 treatment)

Draft 1

This issue has not been addressed in this initial draft. We would like further input from the community before we can make a decision on this important component of the licenses. In particular, we would like to hear about more use cases and the pros/cons of adjusting or removing the provision. Note the TPM provision is bracketed in the two places it appears in the published draft, mirroring the language from v3.0, for ease of reference. We look forward to hearing concrete proposals and use cases for changing (or retaining) the current treatment.

(expand to read Draft 2 treatment)

Draft 2

The restriction on the use of effective technological measures by licensees remains unchanged in draft 2, although the language has been edited for simplicity and combined with related provisions about imposing restrictions on the work. The explanation below provides more detail about our thinking.

Two primary arguments have been advanced in favor of revising the TPM clause.

The first is that DRM is pervasive and commonly used on many media distribution platforms, including Japanese television broadcasting. By disallowing licensees from uploading CC-licensed content to those platforms, it is argued, we limit the reach of CC-licensed content.

The second argument is again related to DRM-restricted platforms but rests on the reality that people are already uploading CC-licensed content to those platforms on a wide scale, not realizing they are violating the terms of CC licenses by doing so. In order to address this innocent copyright infringement, it is argued that CC should amend the TPM restriction to adapt to common user practice.

The two main proposals argued for in 4.0 are to allow licensees to use TPMs but require parallel distribution, or grant downstream users permission to circumvent. We have opted not to pursue either of these in 4.0 at this time in favor of facilitating an opt-in for those licensors wishing to grant permission.

Parallel distribution places a heavy burden on licensees by requiring them to simultaneously supply a modifiable version of the licensed work if they apply TPM to the work. As a practical matter, this requirement has the potential for being overlooked at least as much as the current TPM restriction is now, doing little to reduce unintentional violations. Our second concern is that in many cases it may not be possible to comply. Nothing in the license stops a licensor from placing TPMs on their licensed work or otherwise releasing their work in a format that does not allow modification. This means a licensee may not have access to a suitable version of the work in order to satisfy the parallel distribution requirement when attempting to upload the work to a TPM'd platform. On balance, this approach seems to add further complexity to the license without much corresponding benefit.

The other popular proposal would allow licensees to apply TPM to CC-licensed content but waive any right (they held) to forbid circumvention. The GPL has a similar provision, but as recognized during the 3.0 versioning process, that circumvention language addresses the use of licensed code as a functional component of TPM, which is not relevant in the CC license context. The bigger problem in our view, however, is that the waiver would likely have little impact and could be misleading for licensees. Licensees do not often apply TPMs directly to CC-licensed content directly, but instead upload content to third party platforms that use DRM. In those cases, it is the platform providers who must give permission to circumvent. In some cases, this is a matter of law. For example, under U.S. law the person harmed by the circumvention of TPM has a right to bring a lawsuit under anti-circumvention laws. In other cases, it is simply a matter of violating the platform provider’s terms of use. But either way, anti-circumvention laws often make doing so a crime. Allowing it via our licenses arguably sets licensees up to violate criminal laws, and that is not a desirable result however well we were to educate on this point.

In light of the problems with the two most popular proposals for amending the TPM clause, we feel the best option is to keep the provision as is. However, to help address the valid objectives of encouraging CC-licensed content to be used on DRM’d platforms, CC will look for ways to facilitate waivers of the TPM restriction by licensors who want their licensed content to be used on DRM-restricted platforms. This is something we will work on between now and publication of 4.0.

(expand to read Draft 3 treatment)

Draft 3

In Draft 3, the license has been changed to state that the Licensor agrees to waive or not assert any right or authority to forbid technical modifications, including TPMs applied by the Licensor. This goes as far as as we believe we can go in ensuring that the licensee has the rights that the CC license is intended to grant.

This is a change from Draft 2, which states only that you have the right to make modifications necessary to exercise the Licensed Rights in all media and formats. This additional language is intended to avoid any implication that the licensee has more rights than the license can grant.

It is always possible for a licensor to upload his or her own work to a platform which applies TPMs, even though the licensor applies a CC license to the work. The permission for the third-party platform to apply these TPMs is separate from the CC license, and the CC license cannot affect it so long as CC licenses are nonexclusive. In many jurisdictions, that third party may enforce TPMs through criminal anti-circumvention laws even though the Licensor waives or agrees not to assert any such right.

Because of this, we wish to be clear that the license can only grant the permission to break TPMs applied directly by Licensor; many licensees may still be restricted by third-party rights.

Draft 4

We have introduced a definition of “Effective Technological Measures” that is tied to the WIPO Copyright Treaty and is fairly narrow -- it is intended to limit application of technologies by licensees that have the effect of imposing legal restrictions on reuse, just as our licenses prohibit additional terms that do so. The purpose for including the definition so is to help eliminate misunderstandings about what is intended to be an ETM for purposes of the licenses. A uniform definition tied to laws resulting from the WIPO Copyright Treaty is designed to make the ETM restriction on licensees easier to understand and should result in heightened compliance with the term. The definition is not intended to change the meaning or scope of that phrase from the 3.0 licenses, but instead provide a uniform reference within the license. Please note that during the draft 4 consultation period, we are not revisiting the policy decision previously made to retain the no-ETM prohibition, only clarifying the scope of that prohibition.

We have also expanded the circumvention provision so that the licensor waives or agrees not to assert any authority she might have to forbid licensees from breaking ETMs, not just those applied by the licensor herself.

Overview

Since Version 1.0, the CC licenses have contained language prohibiting imposition of TPMs on CC-licensed works. The current language in CC BY-SA 3.0 4(a) is the following:

You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License.

(Similar language is in 4(b).)

Within the CC and libre licensing communities, this language has been controversial for a long time, in part because it potentially (and paradoxically, given the clause's purpose) limits users' freedoms and complicates use of CC-licensed material in widely used platforms that have TPMs built in.

Outside of the CC and libre licensing communities, awareness of this clause may be minimal. Reasons for this apparently include the choice not to mention this language in the license chooser and human-readable deeds.

One potential solution (the addition of a "parallel distribution" requirement) was extensively discussed, but rejected, for 3.0. For extensive review of the discussion which led up to that rejection, see Version 3#DRM.

Since the creation of the original CC TPM language, TPMs have become more commonplace. For example:

Several popular game and media distribution platforms, such as the PlayStation and most modern digital TVs (via HDMI/HDCP), require TPMs.

Apple's iOS App Store app distribution platform uses the combination of FairPlay TPM (and perhaps other measures) to control use of iOS apps. This limitation may constitute an effective technological measure on the content stored within iOS apps, so distribution of CC-licensed materials via the App Store may constitute a violation of the license. Further research on this issue would be welcome; in particular, it would be good to understand under what conditions (if ever), and to what extent, FairPlay or other TPMs in iOS "restrict the ability of a recipient ... to exercise the rights granted" by the CC licenses. A potential starting point for such research, describing various security mechanisms in iOS, including FairPlay and on-disk encryption, may be found here.

All Japanese terrestrial broadcasting is protected by a TPM. As a result, CC Japan receives inquiries about use of CC-licensed materials in Japanese TV at least monthly, if not more frequently. CC Japan's answers to this question include the point that "you cannot use the image without creating adaptation, (or find a way not to impose TPM for the segment)." When the image is CC-BY-ND, it is impossible to comply with the current language and broadcast CC materials over terrestrial TV in Japan. Friends of CC have heard from an industry source that not imposing a TPM on a particular Japanese terrestrial broadcast is technically possible, but practically impossible. This conflict between the anti-TPM clause and digital TV was raised in 2008 Summit's Legal Day. At the time, the problem was expected but somewhat theoretical. Now that all terrestrial TV broadcasting became digital-only for most of Japan, it is real. Some at the time pointed out that TPM would not be sustainable so we could simply wait and the TPM would disappear. That prediction is not right so far.

Proposals for 4.0

For ease of reference on discussion lists, please do not alter proposal numbers.

After several years of discussion, GPL version 3, Sec. 3 ("Protecting Users' Legal Rights From Anti-Circumvention Law") attempts to allow circumvention of TPMs that either (1) incorporate the GPL-licensed work as part of their functionality or (2) are used to restrict access to the GPL-licensed work. The actual language is as follows:

No covered work shall be deemed part of an effective technological measure ..."

When you convey a covered work, you waive any legal power to forbid circumvention of technological measures to the extent such circumvention is effected by exercising rights under this License with respect to the covered work, and you disclaim any intention to limit operation or modification of the work as a means of enforcing, against the work's users, your or third parties' legal rights to forbid circumvention of technological measures.

The GNU project offers an in-depth explanation of this clause. FSF-E has a summary of several talks on the subject by Richard Stallman and Eben Moglen, as well as drafts of earlier versions of this language here.

The first and third portions of the GPL language focus on the use of the licensed work as a functional component a TPM, rather than application of a TPM to the licensed work. Since CC-licensed works are unlikely to be a functional component of a TPM, these portions are likely inapplicable to Creative Commons licenses. Eliminating those portions leaves the following language (adjusted for terminology in CC 3.0):

When you Distribute a Work, You waive any legal power to forbid circumvention of technological measures to the extent such circumvention is effected by exercising rights under this License with respect to the Work.

Note that a clause of this type could be used in parallel to the existing language; i.e., the license could both prohibit application of TPM and permit circumvention if a TPM was applied.

Pros:

This clause places no new obligations on the distributor, so compliance is easier when compared to a parallel distribution obligation or similar clause that requires a proactive step by the licensee.

Cons:

Permitting circumvention is, in practice, not equivalent to ensuring access, because many TPMs may be difficult or illegal to circumvent. (For example, in Japan, such sales, manufacturing, and other acts related to circumvention device are a crime punishable up to 3 years in prison, etc., according to Art.120bis of Japanese copyright law.)

It is also possible to drop the TPM clause in only some licenses; e.g., it may make sense to make CC-BY a more "pure" "attribution is the only requirement" license by dropping the TPM provision altogether, while keeping the requirement in CC-BY-SA. For more discussion of this, see this mailing list thread, among others.

Treatment in 4.0 d.1: Not addressed as still gathering information.

'Treatment in 4.0 d.2: Same.

'Treatment in 4.0 d.3: See main section on Draft 3 Treatment above. This was investigated but CC cannot give a blanket permission to circumvent due to third parties with standing to enforce criminal anti-circumvention laws. (GPL works slightly differently, as in the CC license the work itself is generally notpart of the TPMS system.) Instead, we have gone as far as we believe we can, having the Licensor agree to waive or not assert thelicensor's own TPMs.

'Treatment in 4.0 d.4: Revised permission to circumvent from the licensor to cover all TPMs, not just those applied by the licensor.

TPM Proposal No. 2:Allow parallel distribution in place of total TPM prohibition.

Pros:

Allow copying of a digital image under CC-BY into increasingly common TPM-protected distribution channels, such as the Japanese TV programs discussed above.

Cons:

It was explicitly rejected during the 3.0 discussion. There were a variety of reasons for this, including negative reception by CC's international affiliate teams. Version_3#DRM contains extensive review of those discussions.

For more information on the previous discussions about parallel distribution, see:

the blog post by Mia Garlick announcing the launch of the 3.0 discussion,

'Treatment in 4.0 d.3: Not pursued, though ways to standardize a waiver of the DRM prohibition as well as other ways to facilitate additional permissions are being investigated in this discussion period.

Related debate

We encourage you to sign up for the license discussion mailing list, where we will be debating this and other 4.0 proposals. HQ will provide links to related email threads from the license discussion mailing list here.

Relevant references

Whether a copyright holder can grant permission to circumvent technical protection measures differs by jurisdiction. Whether a person or entity other than the copyright holder has standing to sue or bring criminal charges against someone who circumvents technical protection measures, even when circumvention is done with permission of the copyright holder, also differs by jurisdiction.

United States

In the United States, the Copyright Act provides that, "“Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.” – 17 U.S.C. § 1203(a)

Case law seems clear that others injured by the circumvention have standing to sue even when they are not the copyright holder.

However, Section 1201(3)(a) defines “circumvention” to include a concept of “without the authority of the copyright holder.” This could suggest that if the copyright holder of a protected work grants the right to circumvent DRM applied by a third party, third parties would not have a cause of action under 1201 unless the act of circumvention included accessing another copyrighted work (e.g. reverse engineering and accessing underlying source code to the DRM algorithm itself). The interplay between a CC licensor granting permission to (or agreeing not to enforce) circumvention and the implied or express permission granted the distributor applying the TPM (through a terms of use, distribution agreement, or waiver of the condition in CC licenses prohibiting application of TPMs to CC-licensed works) is unclear. As a practical matter, the cases cited above generally focus on distribution of technology or devices used for circumvention (rather than individual acts of circumvention), where a defense that the copyright holder granted permission to circumvent or agreed not to enforce rights to prevent it generally wouldn’t come up.